JOHN HOLLANDER & HAROLD GELLER Doucet McBride LLP 100-85 Plymouth Street Ottawa, ON K1S 3E2 (613)233-4474 A better way to resolve investment disputes All agree that investors with complaints against their financial advisors should have access to quick and fair recourse. In reality, the process for such claims is costly, time consuming, and often unfair because most advisors are backed by well-financed advisory firms whereas investors have to hire a lawyer when they are already suffering financially. The solution, as outlined in this article, is to better understand how the regulatory bodies and courts work and to use that knowledge to the advantage of the investor. A Dispute Process that Works To be effective, a system to resolve claims by investors against their advisors must be: Fair, leveling the uneven ground between well-financed advisory firms on the one hand, and retail investors who have suffered losses, on the other. Quick and inexpensive. Satisfactory to both the investor and the advisor as to its handling. Accountable, leaving sufficient footprint to allow statistical evaluation that future claims could look to for guidance. Unfortunately, the current system accomplishes none of these objectives. What do we have now? Currently, a patchwork of rules allows four streams of dispute resolution. The investor can complain to the regulator, but the regulator does not have the power to enforce compensation for the investor. Consequently, the regulator s effort to reconcile the competing interests of investor and advisory firm in compensating the investor for losses is minimal. The investor can invoke the arbitration system initiated by the former Investment Dealers Association, now the Investment Industry Regulatory Organization of Canada (IIROC) only by 1 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r
using the offices of ADR Chambers, a private sector dispute resolution business. Claims are limited to $100,000. The investor can bring the claim before the Ombudsperson for Banking Services and Investments (OBSI), an impartial quasi-public claims investigation body. Claims are limited to $350,000. This organization cannot impose a binding resolution on the parties. The investor can bring a lawsuit in court, but unfortunately, few litigation lawyers are experienced in investment claims. In the case of investment counsel/portfolio managers (ICPMs) or insurance professionals, a substantial gap exists because no recourse is accessible through either ADR Chambers or the OBSI. The Regulators Several regulators oversee the investment process, including national regulators, IIROC and the Mutual Fund Dealers Association (MFDA) and the provincial securities and insurance regulators. All regulators, both the national self-regulating organizations and the provincial public bodies, are charged with ensuring compliance by their members regarding delivery of services to the public. Their focus is to protect the public from misconduct, whether intentional, negligent or innocent. The spotlight is not on the individual investor suffering a loss, but on the public who might be affected by misconduct. The empowering statutes and regulations do not allow damage awards to individual members of the public, although the regulators can levy fines payable to the regulator or the government. Therefore, the damages payable by an advisory firm are disconnected from appropriate compensation for an investor. No concept of responsibility exists (in the regulatory world) that suggests the employer is liable to the consumer for its employee s misconduct (i.e. that of the advisor). If the employee is guilty of misconduct, that guilt reflects upon the employer only in that it reveals a lapse of supervision. The employer can be admonished to improve its supervisory methods, but cannot be compelled to compensate the victim for the employee s misconduct. As matters currently stand, the individual investor cannot directly benefit from the investigation of a complaint. Investment advisory firms refuse as a class to voluntarily treat client claims fairly. This situation cries out for the regulatory bodies to lift the burden from the consumer of retaining lawyers to pursue compensation through the courts or existing dispute resolution mechanisms. However, all is not for nothing. When the regulator says compliance rules have been breached, the court considering a civil litigation claim will take that ruling into account. Thus, a finding of misconduct will be enforced in a civil court as part of a damages action. The court will accept the regulator s expertise and findings, provided the advisor has had an opportunity to defend against any compliance charges and the issues overlap. 2 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r
ADR Chambers Generally speaking, outside of IIROC, parties are not required to agree to arbitration. In the IIROC system, investment dealers must participate if the investor elects this process. Arbitration has advantages over civil litigation, since the parties can agree to rules that speed up the process somewhat and an expert in the field can be chosen as arbitrator. With the court process, the parties end up with whichever judge the system produces, and that judge may be inexperienced in investment claims. Except for the IIROC program, there is no mandatory Alternate Dispute Resolution (ADR) option for retail distribution of financial products and services. IIROC s effort to establish an ADR system was a good first effort when it was instituted, but it fails to meet the retail investor s needs for several reasons. Unfortunately, virtually all investment dealers belong to IIROC, and this means a sole source supplier, ADR Chambers, is automatically chosen to provide arbitration. This causes problems for several reasons: The available arbitrators are vetted by the investment dealers, suggesting inherent bias. While no statistics have been made publicly available, anecdotal evidence suggests an overwhelming tendency to make awards favouring investment dealers. The amount of the claim is limited to $100,000, substantial for some cases but wholly inadequate in many. The investment dealer will be represented by legal counsel, often wellknown to the ADR Chambers arbitrator. The retail investor must try to hire experienced legal counsel, and finding and financing this can be problematic. The investment dealer has access to internal expert evidence. To level the playing field, the retail investor must find an industry expert to break ranks and support the claim. ADR Chambers conducts its business in Toronto and charges substantial travel fees, should the retail investor outside Toronto want access to justice through this route. The investment dealer likely has substantial offices in Toronto, but the investor may not live there. Each criticism should be a deal-breaker. Suffice it to say that the arbitration system, as laid out by IIROC, does not suit most retail investment claims. Despite its shortcomings, at least IIROC has a system in place. The MFDA and the Ontario Securities Commission have no such solution to offer. Neither does Ontario's Financial Services Commission (FSCO), the government department that regulates the insurance industry in the province. As a model, the National Association of Securities Dealers (NASD) arbitration system in the US appears to function effectively. It has no analog in Canada. 3 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r
Ombudsman for Banking Services and Investments Several years ago, the banking industry formed an ombuds office independent from the individual banks, and in addition, each bank has its own ombuds system to deal with disputes. Later, this process expanded to investment services, including mutual funds and investment dealers. From a bank-oriented system, the OBSI has grown into a professional organization that deals impartially with both investment and banking industry claims. While subject to an unnecessarily limited mandate and not binding, the OBSI will investigate a claim and attempt a resolution between the parties. The service is free, but requires substantial input from the retail investor to present the case properly. Claims are limited to $350,000, adequate in the past, but not today. This cap should be revisited. The ombuds process has several major advantages. Not only is it free of charge, but the investigators also have extensive industry experience and are mandated to conduct an independent investigation. The investigator may ask questions and follow-ups after speaking with the other side. The investigator may consult other investigators and outside experts. While the decisions may not be binding, as in arbitration or court, the OBSI reports that virtually all of its recommendations have resulted in settlements. A claim submitted to the OBSI freezes the clock on the Ontario Limitations Act, suggesting that parties can adopt this route and then resort to civil litigation (if necessary), without losing their rights along the way. The process is not without warts, however. In most cases, and for all cases involving bank brokerages, the investor must submit a claim to the bank s own ombuds service. This process, unless the investor is represented by competent legal counsel, is routinely used to ferret out information from the complainant that may be harmful to the case and may stack the deck against the investor. Often, this takes the form of poorly worded complaints, or the failure to address problems that the investor cannot diagnose. The internal review process cannot credibly be called independent or fair. Fairness is not reflected in what appear to be the denial responses. Retail investors are encouraged to believe, and often accept, that the bank s internal ombuds office is impartial but in reality, that office is simply part of the bank s claims reduction or avoidance operations. Nothing said to that ombuds office is confidential, unlike the OBSI. Reference to the bank s ombudsperson may not freeze the limitations clock, although the retail investor is not informed of this and is unlikely to know. The process has other problems. Although many OBSI cases are summarized, with names withheld, most are not and so no reliable record exists of how claims are resolved and in what circumstances. The OBSI can take several months to accumulate enough information to start the negotiation process. Although the investigator may make efforts to deal with the retail investor, it is difficult to remain impartial while building a case for an unrepresented investor. Failure to build a case will often doom the claim to failure. Yet the investigator is not mandated to assist one party over the other. Lacking this, the inequity between the experienced investment firm and a retail investor may impair the retail investor s case. 4 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r
Lack of regulator involvement To the extent that securities are distributed by insurance professionals or by ICPMs, a regulatory gap remains. There has been a lively debate as to how to regulate segregated funds, whole life participating contracts and some universal life insurance contracts. Clearly, they share many characteristics of mutual funds and other investment products regulated by selfregulating organizations. However, active regulation of both ICPMs and the insurance industry is absent and very little exists by way compliance rules, which can be the most effective deterrent to misconduct. This deficiency leaves the retail public exposed to abuse. The court process Much has been written about civil litigation. Suffice it to say, civil litigation is costly and tied up with procedures that often put it beyond the reach of most retail investors. This barrier to accessing effective legal representation is increased because the retail investor has already lost substantial money before considering litigation. What results is a victim unable to afford access to justice, and unwilling to take the risk inherent in a civil claim. Without an experienced civil litigator who is expert in investment claims, the odds strongly favor the investment firm. Unless the retail investor retains comparable lawyers, even a case with obvious merit can be overwhelmed by effective legal counsel advocating for the investment firm. Civil litigation in an adversary system relies on lawyers to present the evidence that best suits their clients. No assurance exists of obtaining a judge experienced in such cases. Extra time can be wasted educating the judge in matters where the regulator already has expertise. The real deal-breaker is usually the high cost and therefore, the added risk to the investor. The civil litigation process is not suited to resolving most disputes. It is simply the only avenue for most retail investors who have suffered substantial losses in the markets. Unfortunately, Winston Churchill s statement, "Democracy is the worst form of government, except for all those other forms that have been tried from time to time" (House of Commons, Nov. 11, 1947) may apply equally to civil litigation. The solution For cases that are not well suited for the OBSI, a combination of the various systems identified will solve most retail investment claims. Here s the prescription: Start with a civil lawsuit filed by a civil litigator. That lawsuit will identify allegations of breach of the standard of care set by the regulators in investment relationships. Take that lawsuit (and the dealer s reply) to the regulator with sufficient evidence to allow the regulator to investigate compliance with the rules governing the transactions or relationships. 5 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r
While the civil lawsuit remains in abeyance, the regulator should investigate the allegations, consulting both the client and the investment firm. After the regulator has accumulated sufficient information, it should rule on the compliance issues. After the compliance issues are resolved by the regulator, the investor can then choose to pursue the civil claim for damages resulting from the breach found by the regulator, to continue the civil claim despite the regulator finding no breach, or abandon the civil claim. Most likely, the parties would agree to resolve the dispute without further court intervention. This solution relies upon the regulator s in-house expertise as well its impartiality. It minimizes the costs facing retail investors, since the regulator can access experts whereas most retail investors cannot. It allows the investment firm the dignity of a closed door investigation, publishable only if the misconduct warrants disciplinary action. Only claims where compliance rules are breached proceed to the next step, determination of damages. This lowers costs to all parties, increases the chance the ruling will be properly founded and therefore satisfy everyone, and minimizes the inherent inequities between the retail investor and investment firm. It appears to be a win-win solution for both the industry and the public. Monday, January 04, 2010 6 P a g e J o h n H o l l a n d e r & H a r o l d G e l l e r